PROCES-VERBAUX DES AUDIENCES PUBLIQUES
tenuesau Palaisdela Paix, à La Haye, les4 et5 octobreetle 15décembre 1989,
sousla présidencedM. Ruda, Président
ORAL STATEMENTS
MINUTES OF THE PUBLIC SlTTlNGS
held or the Peace Palace,The Hague, on54October and
15 December 1989,the President,JudgeRuda, presiding PREMIÈRE AUDIENCE PUBLIQUE (4 X 89, 10 h)
Présents: M. RUDA,Président; MM. LACHSE . LIASO, DA, AOO,SCHWEBEL,
sir Robert JENNINOSM , M. BEDJAOUIN , I, EVENSENT , ARASSOV G,UILLAUME,
SHAHABUDDEEPN A,THAKj,uges; M. VALENCIA-OSPING Ar,effier.
Présents égulemenl:
Pour /'Orgonisution des Nations Unies:
M. Carl-August Fleischhauer, Secrétaire généraladjoint aux affaires juri-
diques, conseiller juridique;
M. Paul C. Szasz, ancien adjoint du Secrétaire générldjoint, consultant;
M. Roy S. Lee, administrateur général,juriste;-
Mme Marcia Y. Constable, assistante personnelle du Secrétaire général
adjoint.
Pour le Gouvernemenl des Etuts-Unis dd'Am4rique:
l'honorable Ahraharn D.Sofaer, runseillcr juridiqus au dr'parrcrncnid'T-lai;
M. Brusc C. Rashkow. hurcau du conseiller juridique au deparicnicni d'€lai. Le PRÉSIDENT: Avant d'en venir à l'affaire qui nous occupe aujourd'hui,
je voudrais signaler que M. Mbaye, Vice-Président,ne pourra, oour des raisons
de santé. assister aux audiences:
La Cour est réuniecejour pour entendre, conformément AI'article 66, para-
graphe 2, de son Statut, des exposésoraux relatifs àla requêtepour avis consul-
tatif dont le Conseil économiaue etsocial l'a saisie nar sa résolu~~-~~-~~ ~75~e~ ~ ~
datedu 24 mai 1989(ci-dessusp. 3-7). Je prierai le Greffier de bien vouloir don-
ner lecture du oararraohe 2 de ladite résolution, qui indique la question sur
laquelle l'avis de la~~ur est demandé.
Le GREFFIER:
«Le Conseil économique et social,
................................................
2. Demande a titre prioritaire a la Cour internationale de Justice, en
application du paragraphe 2 de I'article 96 de la Charte desNations Unies
et conformément àla résolution 89(1)de l'Assemblée générale e,n date du
11décembre1946,un avisconsultatif sur la questionjuridique de I'applica-
bilitéde la section 22 de I'article VI de la convention sur les privilègeset
immunitésdes Nations Unies au cas de M. Dumitru Mazilu en sa qualité
de rapporteur spécialde la Sous-Commission. »
Le PRÉSIDENT: Comme le prescrit l'article 66, paragraphe 1, du Statut, le
Greffier a immédiatement notifiéla requête oour avis consultatif. transmise à
la Cour oar une lettre du Secrétaireeéniral en date du le' iuin 1989. Atous les
~iatjadhiji ejier dejani la Cour. ER ouire. en app11c;itiu~~del'arttc~66, para-
graphe 2. du Statut. I'Organi~ation de$ Nations L'nieret lesLtats partics i 13
convention sur les orivileeës et immunités desNations Unies ont été avisésau'ils
étaientjugéssusceptibles de fournir des renseignements sur la question soumise
à la Cour pour avis consultatif et que celle-ciétait disposéeà recevoir desexpo-
sésécritset des observations écritesainsi au'il était~indiauédans une ordon-
nance du 14juin 1989,.Aux termes de cette Ordonnance, qbi précisait qu'il était
nécessaire,pour fixer les délaisde procédure, de tenir compte du fait que la
requêteoour avis consultatif avait étéexoressémentorésentée «à titre oriori-
raire)..Ir.JClai*.ui\anis Ctatcnt fixc~:le 31 juillet 1989pour la prr'\eniati<)ni
la Cour d'e~pocesécritscoitforiiienient a l'article 66. paragraphe 2. du Statut
et le 31août 1989 oour la orésentation à la Cour. var lesEtats ou org-nisations
qui auraient presente un expose ecrit. d'obser\ations Ccritessur les autres expo-
,Cs C:ritr zoniormcment a I'arti:lc 66, paragraphe 4, du Statut.
Dans le nremier délai.des exoosésécÏitsont eténrésentés.outre nar le Secré-
taire généralde 1'0rga"isation des Nations unies', par lesGouve;nements de
l'Allemagne (République fédéraled'), du Canada, des Etats-Unis d'Amérique
ainsi que de la Républiquesocialiste de Roumanie (ci-dessus p. 173-219);dans
le second délai,des observations écritessur ces exposés écritsont été présentées
par le Gouvernement des Etats-Unis d'Amérique (ci-dessus p. 220-227). Le
'C.I.J. Recueil 1989,p. 9.Secrétairerénéraldes Nations Unies a par ailleurs adresséà la Cour, en applica-
tion de l'a~icle65,paragraphe 2, du ~iaiui. un dossier de documenis (ci~dcrsus
p. II-170) pouLani bertir3.Clucideila quesiion; ;c do,\ier e\i parsenu IiCour
en olusieurs envois
conformément à l'article 106 de son Règlement, la Cour a décidéque les
exposés écritset les observations écritesprésentés en l'espècseeraient rendus
accessibles au public à l'ouverture de la procédure orale.
L'Organisation des Nations Unies et les Etats parties à la convention sur les
privilègeset immunités desNations Unies ont étéinformésde la date d'ouver-
ture des audiences. ainsi Que de la ~ossibilitéde rendre la ~arole devant la
Cour. Seuls le secrétairegénéralde l'Organisation des ~ationhnies et le Gou-
vernement des Etats-Unis d'Amérique, dont je constate la présencedes repré-
sentants à l'audience. ont fait savoir qu'ils entendaient présenter des exposés
orau.;. Je donne en ;on,r'quense la parole i hl.blei,chhlruer. ;onseillcr juridi-
que dc I'Organi,aiion der Nitrions Unie,; la Cour enrendrlr enruiie M. Sofiicr.
conseiller juridiqiie au dépariemenr d'Erai des Erais-Uiiis d'Amérique. ORAL STATEMENT BY MR. FLEISCHHAUER
LEOAL COUNSEL OF THE UNITED NATIONS
Mr. FLEISCHHAUER: Mr. President, Members of the Court.
1. Iiis a greai honour for mc io begiben rhe opporiuniiy ro addresr the Inicr-
national Courr of Justicr in order ro assis1it in responding ro a legal que5tion
of oarticular imoortance and interest to the United Nations. ~he auestion
addressed to the court by the Economic and Social Council, which hasfor the
first time made use of an authorization granted toit by the General Assembly
pursuant to paragraph 2 of Article 96 ofthe United ~ations Charter, concerni
the status of "experts on missions for the United Nations" within the general
régimeof the privileges and immunities of the Organization.
2. The Secretary-General is of course keenly aware of the human rights
dimension of Mr. Mazilu's situation, which was underlined by a recent decision
of the Sub-Commission - to which 1will revert - to refer this matter to its
Special Rapporteur on the human rights of United Nations staff memhers,
experts and their families. The question posed by the Council concerns solely
the related andeauallv relevant issue of the aoolicabilitv of the Convention on
Privileges and lmmuiities of the United ~atsns (the so-called "General Con-
vention") to Mr. Mazilu, and it is in this context thatwill address the Court.
3. 1 do not intend to repeat either the summary of the facts or the legal
arguments set out in the written statement of 28 July 1989submitted on behalf
of the Secretary-General of the United Nations. Rather, 1would like first to
brine the Court uo to date on the relevant develooments in the oresent case
subsiquent to the ;equest for an advisory opinion & the ~conomi and Social
Council. Particular reference will be made to those developments which took
olace durine the fortv-first session of the ~ub-~ommission on Prevention of
'Discriminacon and protection of Minorities held in Geneva iri August. 1will
then turn to some of the legal issues raised by the request in order to comple-
ment the views exoressed in the written statement. .v.addressine in turn the
i\\ue\ perrain~ngro: the compeicncc of ihc Court; the conzepi of "expert5 on
missions" undrr the Gencral Convenrion: the privilegc, and irnmunitics of such
ex.erts:.the aoolicabilitv of these orivileees and immunities in relation to the
country of an'éxpert8siationality and finally, the status of Mr. Mazilu as a
Special Rapporteur of the Sub-Commission.
1. UPDATING THE FACTUAL BACKGROUND
4. Thesummary of the facts giving rise to the request for an advisoryopinion
as contained in the written statement ended with a reference to the intention of
the Secretary-General to publish the report prepared by Mr. Mazilu in pre-
liminary form as a document of the forty-first session of the Sub-Commission.
In the event, the Secretariat, in issuing the report as document E/CN.4/
Sub.2/1989/41, did not characterize it as preliminary. Rather, the Secretary-
General stated in an introductory note, on page 144,supra, of that document:
"The Secretary-General again sought unsuccessfully to contact Mr.
Mazilu with regard to the presentation and editing of his reoort. Not being
able to discuss-with him these matters, the presintrepartis published ai
received." ORAL STATEMENT BY MR. FLEISCHHAUER 235
As also mentioned in that note, a text received from Mr. Mazilu covering
"A Special View on the Romanian Case" was issued as an addendum to the
report.
5. The fortv-lïrsi session ofthe Sub-Commission extendedfrom 7 Aueust to
I September i989. At its first meeting, on 7 August, the temporary chgrman
informed members of the Sub-Commission about the latest developments con-
cernine Mr. Mazilu. In oarticular. he had received êletter from~~r. Mazilu
statingthat he had been in captivit; in 1986and that his lifeand that of hiswife
were in danger. The temvorary Chairman also revorted that Mr. Mazilu had
submitted his study. He suggested that Mr. ~aziiu's letter and study be dis-
cussed later under the appropriate agenda item.
6. At its second meeting, on 8 August, the Sub-Commission, in accordance
with its established practice, invited Mr. Mazilu to participate in the meetings
at which hisreport was to be considered. Mr. Diaconu, the Romanian member
of the Suh-Commission. found such an invitation inavprovr..te..
7. At its tenth meeting. on 14August, the Secretariat reported to the Sub-
Commission itsinability to reach Mr. Mazilu either by cable or by telephone or
throuah the United Nations Office in Bucharest.
8. On 15August, the Permanent hli5rion uf Romania io ihc United Salion,
Office at Geneva requested the circulaiion of a Note Vcrbîlc addressed to the
Centre for Human Righis ar ü document of the Sub-Commission. In ihi\ noie.
the Romanian ~ission exoressed its surnrise at the Secretariat's decision to
publish the report and, inier olia, questioned Mr. Mazilu's "intellectual capa-
city" to make an "objective analysis". Certain excerpts from Mr. Mazilu's
previous publications in Romania wereannexed to this note 10demonstrate the
contrast to Mr. Mazilu's presentviews.
9. On various occasions. throuahout the session of the Sub-Commission,
Mr. Mazilu'sabwnce uas commenÏed on by member, of ihe Sub.Commijsion.
Thc principal discussion on Mr. Mazilu's situation iook plasc on 30 t\ugu\i in
connection uiih item 15lb) of the agenda. IO uhich hlr. Mazilu's report per-
tained. Mr. Diaconu sooke in most critical terms of the nature and content of
Mr. Mazilu'sreport, a; wellas the manner in which the Secretariat had handled
il. A revlv was made by the Under-Secretary-General for Human Rights.
Several mémhersof the &b-~ommission participated in the debate.
10. At the close of the session, the Sub-Commission, on 1 September,
adopted resolution 1989/46, whereby it requested Mr. Mazilu to update his
report and to present it in person al its forty-second session in 1990. The
Secretary-General was requestedto continue Iogather and furnish information
to Mr. Mazilu for his study, and IO provide him with al1necessary assistance.
The Sub-~o~ ~ssion also exoressed ils deev concern at the reports of the ver-
sonal situation of Mr. ~aziiu and his fahily, and requestëd the ~ecretary-
General to follow the situation closely, and to inform the Sub-Commission's
Special Rapporteur on the human rights of United Nations staff members,
experts and their families. The latter was requested to report to the Sub-
Commission on this matter at its next session, and meanwhile 10present a note
on the situation of Mr. Mazilu to the Commission on Human Rights al ils forty-
sixth session in 1990. Finally, the Sub-Commission decided to consider Mr.
Mazilu's updated report at its next session.
II Documents relating io al1ihe çients to which 1habe juir referred have
been included by the Secretariat in Part V of the Dossier of official documenis
relatina IO the auestion addressed b~ the Esonomic and Social Counsil IO the
court.-~his latest instalment was iransmitted to the Registry over this past
week-end.236 PRIWLEOES AND ~MMUNITIES OF THE UNITED NATIONS
II. THECOMPETENC OEF THE COURT
12. Turning now to the legal questions raised by the request for an advisory
opinion, 1would now like to refer to the questions relatine to the competence
of the Court Io accept the request for an advisory opinion.-~ere, 1firsÏ hasten
to make clear that the events which have occurred since the request was
addressed to the Court do not in any.wa. impair its competence to deal with
the request. Throughout the recent session of the ~ub-~omkission, it was made
clear that Mr. Mazilu continues to be the Special Rapporteur on Human Rights
and Youth. whose mesence is necessary for the oresentation and discussion of
his report. The viewof the ~ub-commhsion on ihis matter is further expressed
in the resolution adopted at its forty-first session, which 1have just cited. It is.
therefore, the secretary-General's position that, notwithstanding the publica-
tion of a report submitted by Mr. Mazilu, the question upon which the Court
is requested Io give its advisory opinion continues to be unresolved and is by no
means "moot". The Council's question centres on Mr. Mazilu's status as a
Special Rapporteur of the Sub-Commission. which isof continued relevance to
that body. Although Mr. Mazilu has now submitted a report, the question
whether Article VI of the General Convention is applicable to him is still of
interest to the Council and of importance to the Organization.
13. It should also be pointed out that even though MI. Mazilu did submit a
report. this was done two vears after it had initiallv been exoected. and of this
dilay at the utmost one year can be attributed to aiy medical problems. More-
over, in preparing his repon, Mr. Mazilu did not have the benefit of normal col-
laboration with the secrétariatof theCentre for Human Riehts. either in Geneva
-,
or in Bucharest. Nor does it appear that he received al1the materials the Centre
had forwarded to assist him in preparing his report.
14. 1would next liketo make some additional remarks on the ~b~ections~,o
the Court's cornpetense in ihis matier as set out in the uritten statement suhmit-
ted bg Rornania. The Court iï naiurally aware chai at several siages. ihat is. in
the Sub-Commission. in the Commission on Hum~ ~~ieht;-and in the
Economic and Social~ouncil. as well as in ithhrittçn riatemeni addressed IO
the Court. the Romanian Governmeni has objecred IO the right of the Council
to addros its request IO the Court. 3s wellas the Court's competence IOrespond
IO it. The Government's objection is based on a reservation that it formulated
IO Section 30 of the General Convention ai the lime it acceded to that instru-
ment. That reservation forms in Romania's view, an integral part of the expres-
sion of ils consent to be bound by the Convention, any disregard of which
would disrupt the unity of that instrument.
15. It is the ~ecretar;,-Genrral', pi>\itiunihat this rerertaiion does not apply
to the preseni request: thus Romania's obligation under the Con\ention. as ucll
as the Council's riaht to reauest an advisory ooinion and the Court's com-
peience io respondihereto. &main unaffected. ~his position is founded on a
number oi considerations In the first place. the authority of the Economic and
Social Council. a princip~lurgan of ihc United Nations, IO request advisory opi-
nions from the Court. i\ based solelyon paraerüph 2 of Article96 of the Charter
and on an authorization. pursuant to that paragraph, thai the General Assernbly
graniçd to the Council in 1946b) its resolution 89 (1).Seaion 30of ihe General
convention - which foresees ricourse Io the advi~o~ ~ ,oF~~~~~~~~~~~~certai~ ~~ ~ ~ ~ ~ ~
circumstances and IO which the Romanian reservation relates - is in no way the
source of the Council's authoriiy to address lesal auestionr io the Court. Sec-
tion 30 prescribes that if a difference regard& the Convention should arise
between a Member State and the Organization, that difference shall be resolved ORAL STATEMENT BY MR. FLEISCHHAUER 237
with binding effect by having a duly authorized United Nations organ request
and receive an advisorv ooinion from the Court. In the oresent instance,
ECOSOC, *,hich \ras O? c"urre aware oi the Romanian rescr\aiion. did no1
attempt IO niakc of ihir provirion oi the General Convention IO seille the
difference ihat it found had arijen beiween Romania and the United Nations:
it merely requested the Court to give a non-binding advisory opinion on a par-
ticular legal question.
16. This characterization of the Council's intention is reinforced bv the con-
sideration that the Council did not request the Court to determine.what the
Government's obligations were vis-à-visMr. Mazilu under theConvention,and
whether or not the~overnment had violated these obligations. Rather, it posed
a legal question concerning the difference it found had arisen, the answer Io
which is of considerable interest to the Council and Io the Organization as a
whole. If the non-hinding advice expected from the Court helps to resolve the
difference, so much the better - but the Council's requestwas not conditioned
on such an expectation.
17. The Romanian Government takes a different view of this matter since il
appears to assert that its reservation to the General Convention somehow
negates the authority of the Economic and Social Council Io exercise its
Charte~-d~ ~ved and General Assemblv-aoo,ov.. authorization to address the
<:ourt. Bui this assertion i, one that sannoi be accepted eithçr in Iogi~. r in lau.
IR. In the firsi olace,ii ivould mun thai if the Genersl Con\enti<in had no
disputes-settlemeni clause at all, then the ECOSOC, or the Assemhly itself,
would be free, pursuant to Charter Article 96, to address to the Court legal
questions concerning that instrument. But as it does contain such a clause and
a Government has attempted to neutralize it by a reservation, if is claimed that
the Council and the Assembly are thereby paralysed: they can no longer secure
from the Court any advice concerning the Convention, as long as that advice
might relate to a position that the reserving State has taken. The Court will
recall that in its advisory opinion on Reservotions to the Genocide Convention
it disnosed of a similar argument bv oointine out that the mere fact that an
instr"ment contained a diseutes cla"si did n; mean that a competent United
Nations organ could no1 request an advisory opinion on some legal question
concerning that instrument.
19. Furthermore, such a conclusion would appear to place the Romanian
reservation above the Charter itself, which foresees that authorized organs of
the United Nations should be able Io secure legal opinions from the Court on
matters within the scope of their activities. Not even a solemn treaty could, pur-
suant to Article 103 of the Charter, negate the effect of Article 96; how then
could a mere unilateral reservatioii to a treaty have such a powerful negative
effect?
20. In addition, itshould be noted that the veryterms of the Romanian reser-
vation do not aooear toextend nearlv as faras that Government now contends.
The first sentence of the reservation seems to refer solely to the first sentence
of Section 30 of the General Convention, dealing with disputes that might arise
between States oarties Io the Convention and which, failine another mode of
settlement, are io be brought to the Court under Article 36(1) of its Statute.
As to the remaining part of Section 30, namely the one dealing with differences
betwee~ithe Oreanization and a Member State. the Romanian reservation
-
mcrely uould depriw an). advisory opinion obtained of its otherwise decisire or
binding qualit).. In othrr words. the text of the rcscrvation does noi prcvent the
~rgankaiion from requesting an advisory opinion; it merely states that such an
opinion cannot, without the consent of Romania, have a binding effect.238 PRlWLEOES AND IMMUNiTlES OF THE UNITED NATIONS
21. At the very least, the tex1of the reservation is ambiguous. As it is, in
effect, a unilateral instrument, it would seem inappropriate to interpret any
ambieuitv in favour of itsauthor and aeainst those who had nothine. to do with
lis fo-rrn"laiion Furihermore, in ltgh;of the general encouragemeni in the
Charier for the peaceful seillement ofdisputes.and in pîrticular for the ludicial
settlement of leeal disoutes. ambieuities in texts relatine Io the oeaceful settle-
ment of disputeishouid not'be interpreted in a manner tiiat would unnecessarily
diminish or constrain provisions that would provide for such a means of
settlement.
22. The Romanian written statement also expresses the view that this Court
lacks jurisdiction or competence in respect of the instant question because no
disnute had arisen between the United Nations and Romania. with reeard Io the
ap~lication and inierpretation of ihe Convention. but perhaps only a-difference
of oninion as io the faciual elements reaardine. Mr Mazilu's ability to carw out
his assignment. If one follows this argument; then of course section 30 O-fthe
General Convention. as well as the Romanian reservation thereto, are entirely
irrelevant. which coincides with the oosition that, albeit on other grounds, the
United Nations has consistently takén. If, on the other hand, theargument is
that the existence of a dispute is a prerequisite for the Court to be competent
to reoly to the Council's question, then this of course is no1so, for the advisorv
compeience of the Court is in no way tied to the existence of a dispute. ~athei,
paragraph 1 of Article 65 of the Statute authorizes the Court "Io give an
advisory opinion on any legal question" requested by a duly authorized body.
23. 1 now turn to a point of substance which is of particular interest and
importance for the United Nations, namely, the concept of "experts on mis-
sions". This concept relates to Article VI of the General Convention. and in var-
ticular to Section 22 thereof, which deals with a class of persons called "experts
on missions for the United Nations". That is one of three categories of persons
related to the United Nations. as well as to other international oraanizations
whosc status is pro%,idedfor specifically in ihe General onv vent ion inthend
annexes of the companion Specializcd Agcncicr Convention that were for-
mulated by several of the agenGes. Theother two categories are "representatives
of Member States" and "officials of the Organization".
24. In United Nations practice. the terms "experts on missions" com-
orises versons who. beina neither reoresentatives of States nor officials of the
~rgankation, perform siecific tasks'for the Organization or one of its organs.
Such persons may have a direct contractual relationship with the Organization,
such as consultants emoloved on Soecial Service ~ereements : alternativelv.
they might have an indirect relatiokhip, such as mikary obse'rversor poli&
monitors whose relationship is defined not by a contract with the Organization,
but by an agreement with their Governments, as well as in so-called status of
forces agreements. such as the one governing the presence of UNTAG in
Namibia. In either case, the particular status is spelled out in a special status
agreement or in agreements with the Governments concerned. But in addition,
many experts, like Mr. Mazilu, merely have a task assigned to them by compe-
tent organs which they have undertaken to carry out. These experts are not
specifically identified as such through contracts or Special ServiceAgreements,
but it is their function or assignment that confers their status upon them. They
may receivetheir assignments from the Secretary-General or any other principal
or subsidiary organ. Some of these assignments consist of membership in a par- ORAL STATEMENT BY MR. FLEISCHHAUER 239
ticular hodv. such as the International Law Commission. to which thev are
~ ~ ~~~ ~ . . ~ ~ ~
elected or appointed. while othcr tlisks are king assigned and accepted on an
ad hoc hasi<.Somc experts uork individually. \"hile orhers do io collccti~clyin
a standing commission or ina specisl rask force. Some tasks arc highly politicül,
such as that of a Spccial Represeniarive of the Secretary.General to deal with
a oarticular international disoute. while others are ourelv technical. such as
making a survcy or searchini lirerature. The particu.lar task may hcof great
importance or itmay bc entircly routine. Frcquently. these tasks involve rravel.
and some are indeed carried out entirelv away from the exoert's own country :
others. however. perform their tasks ~a;~el~or completelyin their home coun-
tries. But. in any event. their task, mu,[ bccdrricd out on an adpersonam basis.
that is, the expert must, in respect of the particular task or assignment or mis-
sion, he responsible solely to the Organization and not he subject to national
controls in the execution of his task.
25. It is neither correct nor relevant to distinguish hetween "rapporteurs",
"officials" and "experts on missions" on the sole basis of the "permanent" or
"occasional" nature of their assignments, as the Government of Romania
attemnts to do in its written statement. Whether the task assi~nedad oersonam
hy the'united Nations is long- or short-term. continuous or inÏermitteit, impor-
tantor unimportant, the person who performs if isan "expert" within the mean-
ing of the convention. whose "mission" is precisely co-extensive with his
assignment.
26. It should again be pointed out that the "mission" of an expert does not
necessarilv include. and certainlv is not defined hv travel. While travel in con-
nection with an assignment is alkqs part of the ritsston - thi\ be~npehpli~itly
spectfied in Section 22of the General Convention - the mission is nor restricted
to such travel or to a stay abroad, but rather consists of carrying out the
assigned task, wherever this is done.
27. The United Nations has been entrusted with many important tasks which
it has a duty to carry out in the interest of the international community as such.
In order to enahle the Organization to carry out its mandate, if must be given
the necessary tools. One of these tools, born out of sheer necessity, out of sheer
functional necessitv...sthe "exn7~t o~ m~ ~ ~ ~ who carries out activities for the
Organization. which for substanrivc. ridministrativc or financial reasonl rannoi
be assigned to United Nations officials. 1t is for ths Organization io dctcrmine
on which occasions experts on missions areto be employed in order to carry out
a given task, as well as to choose those experts. The limit of the discretion in
this respect is the relevant mandate which has to he executed, the allocated
hudgetary means, as well as the general obligation encumbent on the Organiza-
tion to carry out its tasks effectively. efficiently and in good faith. If a State
does not agree with the use of experts on missions for a given purpose or if a
State ohiects to a oarticular exnert chosen. then that State can alwavs turn to
a responiihle organ of the ~r~inization. ~"t the faet remains that thécategory
of "exoerts on missions" is an essential and necessary tool which must he used
as thebrganization, through its competent organs, sees fit.
28. Experts on missions, in order to comply with the functional needs of the
Organization, must he granted the appropriate privilegesand immunities so that
they can carry out their tasks for the Organization to the best of their ahilities,
free from national interference.
IV. PRNUECES AND IMMUN~S OF EXPERTS ON MISSIONS
29. And this now hrings me to the next point on which 1 wish Io make
remarks complementing the written statement, and that is the nature of those240 PRIWLEGES AND UIMUNITIES OF THE UNITED NATIONS
privileges and immunities of the experts on missions. The rights to which these
experts are entitled in terms of the General Convention and certain annexes to
the Specialized Agencies Convention are Io be differentiated from those that
apply to representatives of States or to officials. The former enjoy diplomatic
orivileees and immunities while the latter - exceot for the mos~ ~ ~ ~ ~ranks
- enjoy only functional rights. But the scope and content of these, however,
necessarily reflect the fact that these officials may be spendina many years of
their lives and often their entire careers in inte~national seriice; th&, their
privilegesand immunities, though basically functional, mus1to some extent also
apply to their persons and even to that of their families.
30. By contrast. the scope and content of the privileges and immunities of
experts on missions are more strictly functional - even task-oriented. That is,
their rights are not related to their need tomaintain a certain international per-
sonal status, for the only purpose of granting such rights is to enable them to
carry out a particular assignment, without national interference that might
inhibit either their ability to perform that task or mission, or their freedom to
do so to the best of their abilities and conscience.
31. 1 would like to add that States are protected by the obligation of the
Organization to act in good faith in choosing and in assigning tasks to experts,
by the ability of Governments to question contentious assignments in the com-
petent organs of the Organization and, in extreme conditions, by requesting a
waiver under Section 23 of the General Convention.
32. From a technical point of view, it is important to note that because of
the more strictly task-related privileges and immunities of experts on missions,
and also because of the usuallv.temoo.arv nature of their assien-e~~~~~the ~~~~~~.
dirions under u.hich ihey become eniitledlo such privileges and imrnunities are
differcnt from thuse of re~rcseniarives of States or international officials.
Representatives of States generally require some sort of accreditation, which
both defines their authority to act in or vis-&vis an international organization,
as wellas the status under which they enjoy rights in the host country concerned.
Officials are listed and annually reported to al1members of the international
organization that employs them.
33. In respect of experts on missions, however, none of these formalities are
practical or generally necessary. As the parties to the General Convention have,
byArticle VIof that instrument, only undertaken no1Io interfere with these per-
sons in carryine.out the tasks assinned to them hy the United Nations. it is not
necessary thai Ïhese States have anadvance or curieni lis1of experts wi;hin their
ierritory. nor would ilbe feasible to provide them with such data. For al1
practical purposes, it should suffice if an international expert, should he be
threatened with a particular national interference in the execution of a task
entrusted Io him by the Organization, merely points out that fact to the na-
tional authorities concerned. and if necessary obtains confirmation from the
Organization. Once the national authoritie; are aware of the international
nature of a particular activity, they generally have no difficulty in according the
necessary privileges and immunities to enahle that activity to he carried out
without interference.
34. Only in relation to travel is if sometimes useful if the United Nations-
related purpose of a particular journey is documented by the Organization issu-
ing a Certificate of Travel as foreseen under Section 26 of the General Con-
vention.
35. Evidently, different exverts need different vrivileaes and immunities
to carry out their respective missions. For some, these missions involve con-
siderable danger, while for the most they are of a routine nature. Article VI of ORAL STATEMENT BY MR. FLEISCHWUER 241
the General Convention is formulated flexiblyenough to cover al1types of mis-
sions, because the basic rule is that each expert receives just what he needs to
carry out his tasks - no more and no less.
V. STATUS OF EXPERTS 1s NOTRELATED TO NATIONNITY
36. The Romanian Covernment asserts. oarticularly in its Aide-Mémoire
addressed to the United Nations on 6 ~anuar; 1989, that an expert on mission
cannot enjoy privileges and immunities in the country of which he is a national
or a oermanent resident. but solelyin thecountrv in which heis on mission and
during such a mission. will theiefore briefly address this point.
37. Article VI of the General Convention does not differentiate in any way
between the privileges and immunities enjoyed by an expert on mission in the
country of his nationality, in the country of his permanent residence or in any
other country. Article V, which relates to officials of the Organization, does not
make anv distinction either. In this. both Articles differ from Article IV,
relaring 1; the represeniatives of States. in that ArticleIV contains a clear provi-
sion cxcluding the cnjoymeni by a national represeniative of righis vis-A-visthe
countrv that he reoresents or of which heis a citizen. Thus, when the drafters
of the ~onventionconsidered it appropriate to exclude rights for citizens, they
very clearly did so. When they did not consider such an exception appropriate,
as in resnect of officials or exoerts on missions. then they formulated no such
exclusion. Certainly, in respeci of officials no one doubtsthat they can and do
enjoy rights vis-à-vis their own countries and there is no reason to hold other-
wise in resoect of exDerts on missions.
38. As bointed oit in the written statement submitted on behalf of the
Secretary-General, in the past a few countries have made certain reservations
designed to diminish to some extent the rights enjoyed by experts of their
nationality in respect of their own Governments, in such matters as taxes and
national service. Romania made no such reservation, and therefore cannot
claim such exceotion. On the other hand. as also recalled in the written state-
ment, a few other countries that aishedto formulate extensive exclusions in
respect of experts of their nationality, were advised by the Secretary-General -
in his canacitv both as denositarv of the Convention and auardian of its nrovi-
sions - ihat Suchwide exclusions would not be cornpatibG with the purpose of
the Convention, and therefore could not be accepted.
39. In its written statement, Romania has also put forward that:
"ln the country of which he is a citizen, in the country where he has his
permanent residence, or in other countries where he may be for reasons
unconnected with the mission in question, the expert is only accorded
privileges and immunities in relation to the content of the activities in
which he engages during his mission (including his spoken and written
communications)."
This argument finds no basis in the General Convention or in any other similar
instrument. It imolies a limit~ ~ ~ ~n the functio~s ~n exoert cano~ 7~ ~ ~n his
own country and is again hased on the incorrect assumption that an expert's
mission consists principally of travel. In Ourview, theonly question with respect
to an expert's rights, in hiscountry or elsewhere, should be whether he is carry-
ing out in that country any aspect of his mission. For if he is, then Section 22
of the General Convention applies.
40. Evidently, where a particular assignment is to be carried out depends
largely on objective factors, that is. on the requirements of that assignment. ORAL STATEMENT BK MR. FLEISCHHAUER 243
as a matter of practice, make either staff appointments or experts assignments
dependent on governmental medical clearances. Whether Mr. Mazilu was thus
healthy enough to carry Our his assignment was a matter to be determined on
the one hand bv himself. an, on the other bv the ,nited Nations~ ~ ~ ~ ~ - ~ ~ - ~
47. ~videntli, if an expert does not carry out his mission, for any reason but
aovernmental interference, then he is not entitled to the protection afforded by
Section 22of the General Convention, for that protectionrelates only tothe per-
formance of the mission, that is the carrying out of an assigned task. But if
the reason for the non-~erformance is riovernmental interference. then that
Governmeni cannoi claim thai the interfe&nce %a\jusiifiçd by the Isci ihai the
lack of performance caused thereby meant ihai the person in qucsiion wai never
entitled~to protection as an expert on mission.
48. While it is not entirely clear when Mr. Mazilu started to work or to try
to work on his report, and why there may have been any delay, that is al1not
relevant to the auestion addressed to the Court. What is clear is that the Sub-
Commission, which mighi have caniellcd the asignment on the ground of hlr.
Mazilu's apparent initial inaciivity. did not shoose io do sa. Instead. itexpliiiily
extended the assie-ment vear after ve.r. .nd thus Mr. Mazilu remained and still
remains a Special Rapporteur.
49. What isequally clear isthat Mr. Mazilu himself did not give up his assign-
ment. Whenever he was able to communicate with the Centre for Human
Rights, or with officers or members of the Sub-Commission, he confirmed his
desire to proceed with his work and asked for assistance and protection to
enable him todo so. So, if there was lack of performance on his part during
any part of this period, it was apparently not due to any wilful neglect on his
part.
50. Since thus the Sub-Commission exnlicitlv wished and still wishes Mr.
Mazilu to continue as ils Special ~a~porte"r on ~uman Righis and Youih, and
since ihere is no doubt he is uilling io carry oui thar assignmeni for the United
Nations. it followsthat hecontinues in the status of an ex~erton mission. within
the me=& of Article VI.Section 22. of ihe üencral convention. hile work-
ing on his report, he is cniiiled to freedom from inhibition on the independeni
exercise of this function from anv Government. includina his own.
51. Thus, the considerations whish I have just advanced to complemeni the
wriiien statement. confirrn the conclusions reached thcrein u,ith reipect to the
applicability of Article VI. Section 22, of the General Convention toMr. Marilu
as a Special Rapporteur of the Sub-Commission.
52. 1 do hope, MI. President, that these remarks will assist the Court in
rendering the advisory opinion requested by the Economic and Social Council.
The Court adjourned from 11.05 fo 11.40 o.m. ORAL STATEMENTBY MR. SOFAER
LEGAL ADVISER U,NtTED STATES DEPARTMENT OF STATE
Mr. SOFAER:
Mr. President and Memhers of the Court. itis an honour ta represent the
United States in this proceedina. which involves issues of suhstantial concern to
the international communitv. -
The L'nitcdNations tconom~c and So~.ialCouncil ha\ for the first timc cher-
ciwd its ~tuthorityto reaue,t an advisory o~inion irom [hi, Court. CCOSOC ha<
not taken this hGtoric Gep lightly, but-raiher in response to a serious situation
that has developed with respect to its ahility and the ahility of its subsidiary
Ornans to carrv out their imoortant work.
The unfortunate circumstances underlying ECOSOC's request ta this Court
have been meticulously descrihed hy the United Nations Legal Adviser. The
United States has submitted a written statement and additional written com-
ments. My purpose today will be to present the essentials of our position and
to stress the importance of deciding this case without impinging upon the
legitimate concerns of Memher States.
The precise question hefore this Court is a request thatitrenders its advisory
opinion:
"on the legal question of the applicahility of Article VI, Section 22, of the
Convention on the Privileges and lmmunities of the United Nations in the
case of Dumitru Mazilu as Special Rapporteur of the Suh-Commission"
of ECOSOC. In general, this question poses no serious doubt. Romania, in its
written suhmission concedes that if is a oartv to the General Convention (o.201.
supra), and that il"does not deny the abpliCahilityof the provisions of the 1946
Convention" (p. 204, supra), to the extent that special rapporteurs such as Mr.
Mazilu thouah not "on the same footine as the exoerts who carrv out missions
for the unitid Nations" (p. 203, supro);are entitlédunder some'circumstances
ta functional immunity (rbid.).Romania claims, however, that this Court has
no jurisdiction whatever to advise on this question or on the scope of the
privileges and immunities enjoyed by MI. Mazilu hecause of the reservation it
entered under Section 30 of the General Convention concerning the settlement
of disputes. The United States helieves that Romania's position on jurisdiction
is untenable, and that this Court should exercise its authority to advise the
United Nations on the Convention's applicahility in the case of Mr. Mazilu.
Romania argues in ils suhmission that ECOSOC's request for an advisory
opinion must he treated as having heen made under Section 30 of the General
Convention, and that ils reservation to that section strips the Court of juris-
diction Io render such an opinion. It contends that "Romania has expressly
declared that it did not agree that any kind of opinion should he asked of the
Court concerning the present case" (p. 202,supra), and that this reservation to
Section 30 precludes jurisdiction on any other hasis as well. ORAL STATE~CENTBY MR. SOFAER 245
Romania could not achieve this result, even if it in fact had attempted todo
so with the clarity necessary for such an objective. ECOSOC has requested this
advisory opinion. not under Section 30 of the General Convention, but as an
exercise of its authority under Article 96 of the United Nations Charter and
General Assemblv resolution 89 (1). which authorized ECOSOC to seek advi-
sory opinions on-legal questions'falling within the scope of its activities. The
issue suhmitted by ECOSOC concerns the privileges and immunities to which
a snecialraDoorteur of the United Nations Sub-commission on Prevention of
~iscrimination and Protection of h4inorities is entitled. The Sub-Commission
is a subsidiary organ of ECOSOC. Accordinnly. ECOSOC has requested an
advisorv ooinion on a leeal ouestion fallina withfn the scooe of its acuvities and
has the;efAre satisfied the réquirementsof Article 96 ani resolution 89 (1).
The jurisprudence of this Court estahlishes that a reservation to a dispute
. ~
settlement provision in a multilateral convention, however clearly expresxd,
cannot deprive the United Nations or any authorized United Nations body of
its independent authority to seek, and this Court of its discretion to provide, an
advisory opinion concerning appropriate legal questions.
In Reservalions 10the Convenlion on the Prevention and Punishment of the
Crime of Genocide. this Court was Dresented with a reauest bv the General
~ssembiy ior ari adti'ory opinion rcbarding the efiect oi reser;,ationc to the
Cicnocidc Con\'eiition and objections io ihose reservations. Article 1X of the
Gcnocide Convention, likc Section ?Oof the General Convcntiun. provider that
dispute\ üs io the iiiterpretation and application oi ihc Conicntion shall be sub-
mitied to the Court a1 the request of ans of ihe parties. States opporing ihe
reauested opinion arnued that Article IX de~rived the Court of anv Dower Io
givc an ad\;isory opLion. The Couri held,~howe\,er. thai the exiAence of a
dispute rcsolution procedure. such as rhat providcd in Article IX of the
Genocidc Convention. does not deprivc the Court of jurisdinion to render an
advisory opinion concerning that treaty pursuant to the general authoriiy pro-
vided under Article 96 of the Charter (I.C.J. Reporrs 1951, p. 15).
Some years later the Court reaffirmed this pÏinciple in Judgments of the
Adminisfralive Tribunal of the IL0 upon Complainfs Made ogoinsf Unesco.
While the Court in that case upheld the authority of Unesco to request an
advisorv ooinion under Article XII of the Statute of the Administrative Tri-
bunal, uhi!h pcrmits an international organi~ation to shallcngeü dciibion of the
Trihunal oii jurisdiction and procedural grounds. itexpressly confirmcd ihat
Unesco also had the eeneral oower to reauest advisorv ooinions on leaal aues-
tions arising within t<e scope.of its activiiies under ~[ticie 96 of the agreement
between Unesco and the United Nations - though it had chosen not to pre-
dicate its reauest on that eeneral ~ower (1.C.J. R~Do~~ s956. o. 71)
As the our ri 's cisions-in thesf cases !uggest, d/spuie settle~eni provisions
in rnultilaicral conteniions are nur10 be construed as displacing. bui rather as
suoolementinn. the eeneral authoritv of United ~ations bodies to seek leaal
advice from sis court. Hence, no réservationto such provisions can be effëc-
tive to deprive those general authorities of their intended force. Any other rule
would enable a State to reduce the intended scope of the Court's advisory
jurisdiction under Article % by refusing to agree to a dispute settlement provi-
sion under particular multilateral conventions.
The fact is. moreover. that Romania's reservation to Section 30 is insuffi-
ciently clear even to permit the contention that it successfully displaced
ECOSOC's more general authority. The reservation's language, read in con-
junction with Section 30, demonstrates that it does not even purport to bar the
Court from rendering an advisory opinion. Romania's reservationcontains two246 PRIVILEGES AND U~MUNITIES OF THE UNITED NATIONS
sentences. The first sentence addresses that oart of Section 30that orovides for
resort to the Court for decisions in regard Io differences between parties over- ~ - ~
the interpretation and application of the Convention; Romania refused to
acceot that comnulsorv iurisdiction without its exoress consent. The seco-~~~~~~
sentince of the ;eservatcon addresses that part of'~ection 30 providing that
advisory opinions will be accepted hy the parties as "decisive". It is this conse-
quence that Romania sought in its reservations to reject, and successfully, as the
United Nations recognizes. The reservation. therefore, fails to strip the Court
of jurisdiction to render advisory opinions, and concerns only the legal effect
of such opinions. Any doubt as to tbis construction shouldbe resolved in a man-
ner that avoids the implication that Romaniain fact intended a result - a reser-
vation against any advisory jurisdiction - that would be inconsistent with the
Charter's design.
Romania's final argument is that, even if the Court has jurisdiction, the
problem of applying the General Convention "does not even arise in this
instance" (p. 203, supra). Romania's position in this regard is that it does not
dispute the application of the Convention, but that its application in this case
must lead the Court to conclude that Mr. Mazilu has no immunitv because he
hîs no1left Komania. or hchds been dctcrmined in accordance wi;h Rornanian
la%,to be too sick to travel or perform the task assigned him: or his job as rap-
porteur has expired.
In fact, however, Romania concedes the Convention's applicability to Mr.
Mazilu only, in ifs words, "as described above" (p. 204, supra). Romania's des-
cription of the Convention's application to MI. Mazilu is at odds with that
of the United Nations and with the bigh value that must be placed on the
independence of rapporteurs and other experts. The limitations proposed by
Romania cannot be aoolied consistentlv with the nreservation of this value
becau,e: the privilcgesi<nd immunities accorded to ~r. Mazilu. though limitcd
to the needs of his funition. cannot arbitrarily be denied within the territory of
anv State. even that of his own nationalitv: because Romania cannot be recon-
niied to possess absolute. unveririable discietion in determining hi sapacity ïo
perform. partisularly in the light of substantial and credible evidcnce to the con-
trary; and because the Unitid Nations body that appointed Mr. Mazilu, not
Romania, must decide when his job expires.
The United States recognizes, of course, that this Court has the discretion
to refuse to issue an advisory opinion if the circumstances warranted such
restraint. Nothing in the present case supports such abstention, however. The
auestion uosed is not hypothetical. but concerns a real and on-.ing controversy
between ihe United ali ion and Romania, over a maiier of fundamenial imper--
tance [o thc United Nations systcm. and involving a human dimension chat the
Secretary.Gcncral war rpesifically reauested by the Sub-Commission "10 lollow
closelv .~..". That ~r.Mazilu's . renort has ~ecentlvbeen oublished in a nre-
lirninary iorm in no respect reduces the propriety of judicial action. Publication
of the report was followed by Sub-Commission action invitinp,Mr. Mazilu to
attend it; 1990 session to piesent an updated report at thattime. The con-
troversy over Mr. Mazilu's status therefore continues.
But even if Mr. Mazilu had no further function to perform, the legal issues
posed bv his case would nonetheless be real and not ourelv hv. ..etical. and
iheir deiermination would be within the discretion of the Court. ~niike the
United Statessystem, and others which require a current "case or controversy"
to iustifv a iudicial determination. the ~nited Nations svstem exolicitlv con-
templatës advisory opinions which provide non-binding g&dance 16 the United
Nations and its membersbip. ORAL STATEldEN BTY MR. SOFAER
M~ms
Finally, 1would like to make only one comment addressing the merits of the
question presented to the Court. The United Nations has avoided any suggestion
that the icooe of Mr. Mazilu's orivileees and immunities extend-hevond the
needs of hisfundion (1 refer specificall; to paragraph 63 of the excelient brief
of the United Nations, P. 188, supra), and nothinn in the record requires any
restriction in this case in the lepiiimate scooe of national control over ~nited
Nations experts by their home Sfates. This Casedoes not involve, for example,
any assertion by the Government of Romania that its national. thouah a United
Nations expert' has been convicted of a crime, or is serving a sentence,
or must for some other legitimate reason be detaiued against his will. The
United States would be greatly concerned with any clairn that an individual
could use his immunity as a United Nations expert to evade the legitimate
domestic laws of his State, fairly applied. The United Nations in this respect has
pointed out its obligation under the Convention in such circumstances to waive
imm~ ~~ ~ ~ ~
Hcre. the Onlyreason given Io justify Romania'r refusal Io permit ils citizen
from carrving out his offical United Nations mission isthat he istoo ricto ncr-
form thaimission. whilcthe record reilecis ihai the individual concerned cliims
he is well enough IO perform the mission. At a minimum, this Court should
advise ECOSOC that a Siate is obliaed. in rhesc circum~tances. IO acceDran
independent evaluation of the physicil fitness of its citizen. ~h'u~h not bind-
ing, the United States would hope that Romania would be able to end this
unfortunate dispute by accepting the Court's opinion.
Mr. President, Members of the Court, for the foregoing reasons and those
set out in Our written submissions, the United States supports this Court's
assumotion of iunsdiction in this niatter. and its determination of the question QUESTIONS DE M. GUILLAUME ET DU PRÉSIDENT
Question de M. Guilluume
M. GUILLAUME: J'aimerais Doserune auestion au re~résentantdu Secré-
iaire gCnéral.Celte question cst la sui\anic: selon le ~ecré~airegénéralexiste.il
entre I'Organisaiion des Nation, Unies et la Roumanie un difiérend au sens de
la section 30 de la convention générale?'
Questions du Président
Le PRÉSIDENT: Je doi, poser trois quesiion, cumme mrmbrc de la Cour.
Premiere aucation: La quesllon de I'applicabilitr: i M. Dumiiru Mazilu de
l'articleVI..secti~~ 22. de la convention~sur les or.vilèe~U et immunités des
Nations Unies s'est-elledéjàposée. la connaissance du Se:rCiaire gineral, lors-
que M. Mazilu étaitencore membre de la Sous-Commission de la lutte conire
ks mesures discriminatoires et de la nrotection des minorités?'
Deuxièmequestion: Le représentantdu Secrétairegénéralpourrait-ilindiquer
le cadre juridique précisdans lequel s'inscrit la prorogation alléguée,u-delà du
31 décembre 1987, du mandat de M. Mazilu en saqualitéde rapporteur spécial
de la Sous-Commission? '
Troisièmequestion: Le représentantdu Secrétaire généraplourrait-il préciser
quelle est, de l'avis du Secrétairegénéral,l'incidence du ((statut juridique de la
convention vis-à-vis de l'Organisation», comme vous le dites dans votre exposé
écrit(par. 51-53),sur la réponseàdonner àla question formuléedans la résolu-
tion 1989/75 du Conseil économique et social?'
Lcs trois que\iions sont posecs Aiùur. M. Flei\chhauer, comme rcpréscniani
du Secrétairegen2ral. Si vou, voulez répondrepar écrit,vous a\,rLl'opportunité
de le faire. Si vous voulez réoondre oralement. vous oourrez le faire demain
matin lors d'une audience a.ui'seratenue àcet effet àdix heures. Nous sommes
à votre disposition.
M. FLEISCHHAUER: Monsieur le Président, je voudrais répondre à ces
questions oralement, si c'est possible demain matin.
Le PRÉSIDENT: Nous'tiendrons donc une audience demain matin à
10 heures pour écouter les réponses de M. Fleischhauer à la question posée
DarM. Guillaume et aux trois questions poséesDarmoi-même,comme membre
de la Cour
L'uudience est levée à 12 h 10
'Voir ci-aprèsp. 249-250
Ibid.,p. 250-251.
'Ib;d. p. 251.
Ibid.,p. 251-252. SECOND PUBLIC SITTING (5 X 89, 10am.)
Present: [Seesitting of 4 X 89.1
REPLYBI' MR. FLKISCHHAUERTO QUESTIOSS PUT
BY JUDGE GUILLAUME:AND BY THE PRESIDENT
Mr. FLEISCHHAUER: Mr. President 1 will answer the questions in the
order in which they have been put to me.
Question by Judge Guillaume
The question asked by Judge Guillaume was:
"Selon le Secretaire gknkral existe-il entre l'organisation des Nations
Unies et la Roumanie un différend au sens de la section 30de la convention
gknkrale?"
In responding io this quesiion Iwould first likeio qayrhai itof course appeara
clearly, both from the Secretary-General's uritien siaiement and from rhe oral
one that 1 had the honour to plesen[ yesterday, that - in the conventional sense
of the word - there are a number of "differences" between the legal position
of the United Nations and that of the Romanian Government in respect of the
applicability of Section 22 of the General Convention to Mr. Mazilu. We con-
sider that these differences include - and 1 realize that as to this point the
Romanian written statement expresses a different view - the very issue as to
which the Economic and Social Counciladdressed ils auestion to the Court. that
is whether Mr. Mazilu, in his capacity as a speciai Rapporteur of the~ub-
Commission on Prevention of Discrimination and Protection of Minorities. was
an "exnert on missi~ ~for ~ ~ ~ ~ ~ ~Nations" ~~-hin~the meanine of Section
22 of tbe ~eneral Convention. A further question. as to which ~okania itself
admits that there is a difference. concerns Mr. Mazilu's ability to carry out his
assignment from the Sub-Commission.
But, even though there are indeed differences or divergences between the
United Nations and the Romanian Government as to several aspects of Mr.
Mazilu's status, this does not mean that these "differences" are ones within the
meaning of Section 30 of the General Convention and in this connection a
number of points are to be noted:
In the first place, even though the Economic and Social Council did indeed
note that a "difference" had arisen between the Organization and the Govern-
ment, it niade that observation without any refcrcncc to Section 30 of the
General Convention - even thouah in the next followinr! D-.aaraD- of.its
resoluiion 1989/75 it explicitly citedanother Section of ihat instrument. While
iis use of thai ierm, the ierm "differcncc". may iherefore not be entirely clear,
it should be noted that the Council is not a iuridical bodv...or is it comoosed
of legal experts.
However, it is suggestiveof the Council's intention in adopting the resolution
to note that. havine referred to a "difference". it then did not attemnt to have
that difference as a whole resolved by the question it addressed to ihe Court.
' Seep. 248.supro.250 PRIVILEGES AND IMMUNITIES OF 711~ UNITED NATIONS
Rather, as already commented on in our written and oral statements, the Coun-
cil merely addressed a preliminary legal question to the Court. which appears
designed to clarify at most the general status of MI. Mazilu in respect of the
Convention, without resolving the entire issue that evidently separates the
United Nations and the Government.
In the second place it should be noted that at no time has the Secretary-
General invoked Section 30 of the General Convention or suggested, vis-&-vis
the Romanian Government,that a difference within the meaningof that Section
had arisen. Though the Convention does not so specify, it would appear that
such an invocation by the Secretary-General, rather than a mere resolution of
anoiher principal organ. is an important factor in determining whether a dif-
ference or dispute can formally be said to exist between the Organizaiion and
a hlember Siate party to the Convention. Members of the Court will no doubt
recall that jus1 las1year, in its Advisory Opinion on the Applrcabilrry of rhe
Obligarion IO Arbilrate under Section 21 of rhe Unrred Narrons Headquarrers
Aareemenr, it was the Secretaw-General's conclusion. communicated formallv
10-the ~nited States Governm;nt, that a dispute had arisen in respect of that
Agreement, that constituted an important factor in the Court's determination
that there was indeed such a dispu~te.
To summarize my response. il is the United Nations position that while dif-
ferences have indeed arisen hetween itself and the Romanian Government in
respect of the applicabiliiy of the General Convention to Mr. Mazilu, under the
circumstances as described. such differences are noi ones within the meaning of
Section 30 of the Convention.
1now come to the first question posed to me hy you yourself, Mr. President.
First question by Presidenf Ruda
The first question asked by you was:
"La auestion de I'anolicabilitéAM. Dumitru Mazilu de l'article VI.
section i2, de la convéition sur les privilègeset immunitésdes ~ation;
Unies s'est-elledéjAposk, Ala connaissance du Secrétaire générallo . rsque
M. Mazilu étaitencore membre de la Sous-Commission de la lutte contre
les mesures discriminatoires et de la protection des minorités?"
In response to this question 1would first like to say that the factual elements
that eventually led to the question concerning the applicability of Section 22 of
the General Convention to Mr. Mazilu started to emerge in the thirty-ninth ses-
sion of the Suh-Commission in Aunust 1987 when MI. Mazilu. who at its
~~~ ~- ~~ ~ ~ ~
prcvioua session in 1985had been aGigned ihe task of preparing a report on
human rights and youih and to present ilai the 1987session. failed to appear
ihereît, eventhough hc wasthen still a member as wellas a Special Rapporteur.
Hoivz\.er, ai that session ri uas assumed, on the basi, of the information then
a\ailable. that llr. Mazilu was too il1Io attend. and no legal a-.stions were
raised at that time about his absence. Instead, his mandate as a Special Rap-
porteur was routinely extended until the following year, even though the Sub-
Commission knew that in the interim his term as memher would exnire.
By the time the Sub-Commission next met, at ils fortieth session in August
1988, MI. Mazilu wasno longer a member of the Sub-Commission. his term
havina exoired on 31Decemher 1987.Becausehe wasnot oresent at that session
eitheryand itthen appeared that his absence might not beentirely due to medical
reasons - in particular because the secreiariat reported on the difficultiesithad
had in communicating with him - the questionof his legalstatus vis-&visthe REPLY BY MR. FLEISCHHAWR TO QUESTIONS 251
Organization was first raised. As reported in the Secretary-General's written
statement. it was at that time that it was first recognized that Mr. Mazilu was
to be con~ ~~ ~ ~ ~ ~n "exnert on mission~f~r the United Nations" within the
meaning of Section 22 ofrthe ~eneral Convention, and it was immediately
thereafter that this position was communicated to the Romanian Government.
Thus. irwould appear that Mr. Mazilu's status undcr the Gcneral Con\,cntion
wa firri raised alter hr ceased to be a mcmbcr oi the Sub-Commission.
Second question by Presidenl Ruda
The second question put to me hy the President reads as follows:
"Le représentantdu Secrétairegenéralpourrait-il indiquer le cildrc juri.
dique précisdans lequel s'inscrit la prorogation alléguéea .u-dela du 31 dé-
cembre 1987.du mandat de M. ~azilu en sa oualitéde raooorteur soecial
ASpoinied out in the writien st;itement submitted on behali of the Secretar).
General. the Sub-Commi>ïion hii a long-established practice of appoiniing
rapnorteurs and snecial ranporteurs normallv from amone its members but
occasionally also non-members, in order to asiist it in perfo;ming its tasks and
1refer in particular Io paragraph 72of the written statement. This practice has
been recognized by its parent bodies - the Commission on Human Rights and
the Economic and Social Council. This competence to appoint rapporteurs and
special rapporteurs necessarily carries with ifthe competence to extend, reassign
and terminate their assignments.
As also mentioned in Our written statement. the Sub-Commission. acting
within ils terms of reference, on 29 August 1985appointed Mr. Mazilu, while
he was still a member of the Sub-Commission, as its Special Rapporteur on
Human Rights and Youth. This decision was then endorsed by the Commission
on Human Rights hy ils resolution 1987/44 of 10 March 1987. When Mr.
Mazilu's memhershi~ in the Sub-Commission ceased. that bodv exnlicitlv indi-
cated and decided 2 ils thirty-ninth, fortieth and forty-first sessions ii 1987,
1988and 1989 respectively that it wished Mr. Mazilu to complete and then to
update his report; The 1987 and 1988 decisions were againSubsequently en-
dorsed b~,the ~o~mission and bv the Economic and Social Council.
As also mentioned in my oral statement yesterday, whenever Mr. Mazilu was
able to communicate with the Centre for Human Riahts or with officers or
mcmbers of the Sub-Commission. he confirmed his deiirc to continue with his
work and askcd for assistance to enable him to do so. There is thu no doubt
of his willineness to carrv out that assinnment for the United Nations.
In the lighf of what 1have said, it is &erefore Ourview that since the organs
which have the competence to appoint special rapporteurs asked MI.Mazilu Io
continue to discharne the task Giened to him. irrespective of his membershia
in the ~ub-cornmisiion, and that &ce be apparently is willing to perform that
task, his status as a Special Rapporteur of the Sub-Commissioncontinues until
he has completed the assignment or it is otherwise terminated
Third queslion by Presidenl Ruda
The third question asked by you, Mr. President, reads as follows:
"Le représentant du Secrétairegénéralpourrait-il préciserquelle est. dc
l'avis du Secrétaire générall.'incidence du '<statutjuridique de la convcn-
tion vis-&vis de l'Organisation», comme vous le dites dans votre expose Le PRÉSIDENT: Au nom de la Cour, je remercieM. Fleischhauerde ses
rénonsesaux auestions qui lui ont éoséesà l'audienced'hier.
'ces réponse;mettentfiAla procédureorale en la prCsenteespece. LaCour
va maintenantcommencerson dClibCré.
L'audienceest levéO 10h 25 TROISIÈME AUDIENCE PUBLIQUE (15 XII 89, 10 h)
Présents: M. RUDA.Président: MM. ELIAS.OUA. Am. SCHWEBELs..r ~ ~ ~
ROBERTJENNINCSM , M. BEDJAOUIN , I, EVENSENT , ARASSOV G,UILLAUME,
SHAHABUDDEE PA,THAKj,uges; M. VALENCIA-OSPIN Gr,ffier.
LECTURE DE L'AVIS CONSULTATIF
Le PRÉSIDENT: La Cour se réunitaujourd'hui pour prononcer en audience
publique, conformémentà l'article 67 de son Statut, I'avisconsultatif. afférent
à I'ApplicabrlitPde la section 22de l'artrVIede la ronventron sur IesprivilPges
et tmmuniriesdes Nations Unies.que leConscil cconomique el soclal de I'Orga.
nisation des Nations Unies lui a demandéde donner aux termes de sa résolu-
tion 1989/75.
Le paragraphe 2 du dispositif de ladite résolutionétaitainsi libellé:
[Le Président litle paragraphe 2 de la résolution 1989/75'.1
M. Mbaye, Vice-Président. pour des raisons desanté,a étéempêché ds eiéger
en la présenteaffaire. M. Lachs. qui a pris part au délibéré et scmtin final,
a été empêchdee siégeraujourd'hui pour un motif dûment justifié.
Les paragaphes 1à8de I'avisrappellent lesétapesde la procédure depuisque
la Cour a étésaisie de la demande. Selon L'usage.ie ne donnerai oas lecture de
cesparagraphes. J'entame donc maintenant la Ïectire du texte de l'avis, en com-
mençant par le paragraphe 9, qui introduit l'exposé desfaits.
[Le Présidentlit les paragraphes 9 61 de I'avis consultatif'.]
Je prie maintenant le Greffier de bien vouloir lire le dispositif de I'avis en
anglais.
[The Registrar reads paragraph 61 of the Opinion'.]
MM. Oda, Evensen et Shahabuddeen joignent à I'avisconsultatif lesexposés
de leur opinion individuelle.
Conformément à la pratique, le texte de I'avis consultatif est disponible des
aujourd'hui sous forme.multicopiée; le texte imprimésera disponible tres pro-
chainement.
L'audience estlevée
Le Président,
(Signé)JoséMaria RUDA.
Le Greffier,
(Signé)Eduardo VNENCIA-OSPINA.
Voirci-dessusp. 5.
'C.I.J.Recueil1989. p.179-198
'I.C.J.Repor~s 1989, p.198.
Exposés oraux - Procès-verbaux des audiences publiques tenues au Palais de la Paix, à La Haye, les 4 et 5 octobre et le 15 décembre 1989 sous la présidence de M. Ruda, Président